Sanhedrin, Chapter 5, Mishnah 4. The Mishnah continues to detail the order of the procedure in capital cases: the examination of the second witness, the opening of the deliberations, and the question of who is permitted to present arguments before the court.
"V'achar kach machnisin es hasheni uvodkin oso":
After examining the first witness, the second witness is brought in and examined with the same types of questions. This matter was already discussed somewhat in the previous Mishnah, which dealt with clarifying whether their testimonies match one another. The phrase "and afterwards" is explained based on what was stated previously, that the senior witness enters first; however, there are versions that omit this phrase, and it does not appear in some manuscripts. Either way, the next step is receiving the testimony of the second witness.
"Im nimtze'u divreihem mechuvanim" - if it becomes clear that the words of the first and second witnesses are aligned and matching, and do not contradict one another (and likewise if there are additional witnesses, a third and a fourth), it is possible to move to the next stage, which is the deliberation stage.
"Poschin bizchus":
The mere fact that witnesses came and testified is not sufficient to convict. It must first be clarified whether the witnesses are reliable, whether they explain the circumstances, and so forth. Therefore, the first thing done is to "open with merit." The Gemara concludes that the meaning of this is that before the deliberations begin, they turn to the accused and say to him: "Do not fear. Even though witnesses came and we are judging your case because they seemingly testified that you are guilty - if you did not do this and you are not guilty, you will not be convicted." The purpose of this is to calm the accused and give him confidence, as he might be stressed facing two witnesses who testify that they saw him commit the act, while he, if he is innocent, knows in his heart that he did nothing.
Who is permitted to present arguments?
As a rule, proposals to argue for the merit of the accused are accepted not only from the judges, but also from those sitting in the courtroom. However, this permission is not granted to just anyone:
To argue for liability: A proposal is not accepted from anyone other than the judges themselves.
To argue for merit: Everyone is permitted, except for the witnesses themselves.
The reason for disqualifying the witnesses is not derived from the verses but from logic: the witnesses are interested parties and have a personal interest. For if it later becomes clear that they are conspiring witnesses, they will be put to death due to the law of "ka'asher zamam", exactly as they conspired to do to the accused. Because of this, they might seek to exempt the accused right now, in order to protect themselves from the consequence that would befall them later.
As the language of the Mishnah states: "Amar echad min ha'edim: yesh li lelamed alav zechus, o echad min hatalmidim: yesh li lelamed alav chovah - meshatkin oso" - if one of the witnesses says he has something to argue for his merit, or if one of the students says he has something to argue for his liability, they silence him. "Students" are not the twenty-three judges, but those sitting in the three rows. No proposal is accepted from the witnesses, neither for merit nor for liability, and even from the students, a proposal to argue for liability is not accepted.
"Amar echad min hatalmidim: yesh li lelamed alav zechus":
Continuing along the same line we have seen in previous lessons, the court seeks to do everything in its power to acquit the defendant, and therefore it is open to suggestions from those sitting in the hall. Therefore, if one of the students, the future judges, says that he has a claim as to why he should be acquitted - "Ma'alin oso umoshivin oso beineihen" - they bring him up and seat him among them. The bringing up is literal: the students sit on the ground, while the judges sit on benches in a semicircle facing them. We therefore bring the one making the suggestion up from the ground and seat him on the bench next to the judges sitting in judgment, and this is a great honor for him.
"Velo hayah yored misham kol hayom kulo" - and he would not go down from there that entire day. We do not return him to his place on the ground for the rest of the day, whether his words are helpful and convincing or not. The reason: if he says something of substance he remains there, and consequently, if his words are not helpful and he is returned to his place, he will be embarrassed. We do not embarrass people, and the fear of embarrassment would also deter others from making suggestions. Therefore, regardless of what he says, he sits with the judges for the rest of the day, so that there will be no sign that his words were rejected. The desire is to encourage every person to suggest a reason to acquit the defendant, and not have them refrain out of fear that they will be embarrassed over an unsuccessful idea.
"Im yesh mamash bidvarav - shome'in lo" - if there is substance to his words, we listen to him. If there is reason and substance in his words, we listen to him. The meaning of this listening is that he earns the right to vote at the end, and even to tip the scales. Consequently, we arrive at an even number of judges, twenty-four. Even though this is not common, it is permitted, since the desire is to encourage people not only to offer reasons to acquit the defendant, but even to be among those who decide the verdict in that direction.
Furthermore, the Baraisa in the Gemara says that if he said something of substance, he earns the right to sit there with the judges "forever". The commentators disagree on the explanation of "forever":
According to the Meiri: Until the end of this trial.
According to others: Forever. He receives a new seat and earns the right to sit in the court with the rest. And since there is no court of twenty-four, this will be a seat of honor; he no longer sits on the ground but rather on the benches with the actual judges, as a continuous sign of honor for being the one who found an excellent argument to save the defendant from execution.
The words of the defendant himself:
The Mishnah continues: "Va'afilu hu omer: yesh li lelamed al atzmi zechus - shome'in lo" - and even if he says: I have a claim to acquit myself - we listen to him. The intention is not that he receives voting rights, but rather that we let him speak and we listen to his words. And if you ask: what is his place here? He cannot be a judge in this case, since he has a personal interest in the matter, and he cannot even be a witness, since he has a personal interest in the matter. Rather, he is a litigant, the defendant in the case, and therefore he is permitted to speak in his own defense, and we listen to his words.
"Uvilvad sheyesh mamash bidvarav" - provided that there is substance to his words. Provided there is logic in the things he says. And if this is indeed so, the court listens to his words and takes them seriously. And if he found a way to extricate himself from the accusation - more power to him.